Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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Keyes on the 9th Amendment

The 9th Amendment is my favorite provision in the Constitution because it establishes the idea that the scope of individual rights is essentially limitless (which is not the same thing as saying that there can be no limit on those rights, only that it is impossible to make a list of all the rights a person has or should have). Alan Keyes pretends to like it too, but he doesn’t really:

Thus, as a logical consequence of the principles of the Declaration, every valid claim of right is associated with the freedom to exercise the right. But in light of those same principles, not every exercise of freedom entails a valid claim of right. This is the essential point forgotten or willfully rejected by many so-called libertarians these days. As a result, they advocate positions that ignore what America’s founders were determined to respect, to wit, the distinction between liberty and licentiousness; and between the wholesome courage wherewith we stand upon our rights and the rebellious arrogance that disdains decent self-government.

As I point out in the essay on Ninth Amendment rights quoted above, the Declaration’s logic in this respect allows Americans to recognize and properly assert rights not mentioned in the Constitution. The 9th Amendment exists to provide them with clear constitutional grounds upon which to stand as they invoke these rights, as constraints upon government power.

At the moment, the relevance of this constitutional claim is painfully obvious. The elitist faction forces presently controlling the U.S. government and some state governments (including Republicans as well as Democrats) are moving to deny the constitutional right of individuals or states to oppose the taking of human life, as required by the first law of “nature and Nature’s God.” They are doing so in the context of an insidious, persistent assault on Second Amendment rights. They are also doing so in the context of Obamacare, as they prepare, by force of unconstitutional edicts and “laws,” to deny the constitutional right of individuals and States to refuse complicity in so-called health-care practices that disregard this same life-preserving natural law obligation. In addition, by promoting so-called homosexual rights, they are engaged in a general offensive to disparage, subvert and ultimately deny the constitutional rights – rooted in obligations antecedent to any and all humanly instituted law or government – that are inherent in the God-endowed family, the primordial institution that is the paradigm, in terms both of liberty and obligation, for natural justice and human community.

The Constitution’s Ninth Amendment provides the key to recognizing and justifying legal and other moves to oppose what amounts, on every front, to a wholesale assault on the first principle of constitutional self-government in the United States, i.e., the Declaration’s affirmation of God-endowed individual rights. Next week I plan to post an article at my blog in which I will discuss specific instances in which politicians and other public figures, who claim to be conservatives, are cooperating with this assault. By discussing these examples, I hope to awaken Americans committed to our founding principles, and to the constitutional republic based upon them, to a simple fact: No one prominently associated with, or promoted by, either of the so-called major parties appears to shares this commitment. Unless Americans who do share it rouse themselves and unite against the regressive elitist faction agenda, the incomparably successful American experiment in principled self-government will give way, first to disorder and dissolution and then, in all likelihood, to the most thoroughly totalitarian elitist despotism humankind has ever known.

The problem lies in the fundamental error at the center of Keyes’ entire view of this subject. All of this flowery rhetoric can be boiled down to a basic syllogism:

P: The Declaration of Independence says our rights come from God.
P: God doesn’t like some kinds of behavior, as the Bible states.
C: Therefore, there is no right to do anything that God condemns.

For Keyes, it is the Bible that determines the scope of legitimate liberty; anything outside of that is “licentiousness” and makes both the baby Jesus and the founding fathers in his head (as opposed to the real ones) cry. He ignores the fact that the man who actually wrote the Declaration of Independence, while he did believe in a creator who endowed us with natural rights, rejected completely the Biblical conception of God as “cruel, vindictive, capricious and unjust.” He was right, of course.

Like most theocrats, Keyes takes any mention of a god or a creator by the founding fathers as proof that they believed in the very same god he does and that he therefore gets to decide what others can and can’t do.

I’m never quite sure which argument Natural Rights advocate are making here:

1.) When we consider the issue rationally we discover in Nature that human beings have rights. The best explanation for how these rights got into Nature is that God put them there for us to discover.

2.) When we consider the issue rationally we realize that human beings want to have rights — and that rights can only be given by God. We discover what our rights are by looking to see what God has said they are.

That first one looks more like what a lot of deistic rationalists would come up with — and it works with or without God.

I find a useful way to deal with claims that ‘my rights are being violated’ is to put the matter in more concrete terms. If your rights are being violated there is something that a) you should have a right to do (including inaction) b) you were planning to do and c) you are being stopped from doing.

So what exactly is it that Alan Keyes wants to do that he is prevented from doing or wants to avoid that he is forced to do?

Is he being prevented from opposing abortion (I’m assuming that’s where the human life rhetoric points)?
What does he want to do with guns that the ‘assault on the second amendment’ is stopping him doing?
What is Obamacare stopping him doing?
What on earth is there that Alan Keyes wants to do that he cannot do if he knows gay people are getting married?

I’m not saying there aren’t answers to these, though I’m scratching my head on the last one, but the answers would reveal a lot about the man.

matty1 @4 “What on earth is there that Alan Keyes wants to do that he cannot do if he knows gay people are getting married?
Duh! Exercising his God-given right to keep them from getting married of course.Stop oppressing him!!11qq!one!!

I wouldn’t try to apply logic to any of Alan Keyes’ word salads. That way lies madness.

Like most anti-gay bigots, Keyes is trying to claim that his right to persecute gays is being infringed upon. But he can’t say those exact words, because that would expose him for the bigot he is. And he can’t just say, “but it’s icky!” So, he babbles some nonsense and then claims it proves his point.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

First, before claiming point one, you would have to make the case that the “God” mentioned herein is indeed the God of the Christian Bible.

Frankly, I think that in and of itself would be a difficult thing to do.

One problem with the boiled-down-Keyes’-syllogism, is that Americans’ rights stem from their Constitution, not their Declaration of Independence, and the former does not in any way incorporate the latter. This renders the first proposition of the syllogism irrelevant (irrespective of whether it is true or not, and I agree with those who cast doubts on its validity). This is perhaps what Katherine was meaning (but overstating) in the first post on this thread.

Ayn Rand got some things wrong, but one of the things that she got right was the fact that there is exactly one inalienable right: the right to try, to attempt any damn thing. There is, of course, no right to succeed. If life and liberty were truly inalienable, cemeteries would be unnecessary and prisons impossible. All other rights are granted by the government whose domain you’re in. I think it was Ambrose Bierce who defined a government as “An organization that both has the power (within a specifc domain) and asserts the moral right to kill anyone who refuses to obey its orders.”

Ichthyic @ #8–not to argue with most of what you said, I think you are looking at the wrong part of the Declaration; I believe the relevant part is after what you quoted, which says:

“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness…” etc.

Which certainly claims that the rights of men (humans) comes from “the Creator” but it is my understanding that this refers (as does “Nature’s God” that you quoted, and as does “Divine Providence” later in the same document) to the Deists’ idea of the Creator which is very much *not* the same “God” the Christians worship.

The existence of the Death Penalty and prisons (contrary to “unalienable rights [to] life [and] liberty”) would appear to clearly demonstrate that the Declaration is (and was meant as) a rhetorical flourish rather than as some carefully-worded foundational piece of legal theory.

Does anybody know how frequently the Declaration has been cited in SCOTUS decisions as having constitutional significance?

@4 matty1
He’s being prevented for locking up or shooting abortion doctors, of course, and from forcing women to bear children they can’t or don’t want to have.
He’s being prevented from owning a bazooka to shoot Obama/Hitler/Stalin when he comes to put him in a concentration camp.
Stopping him from making poor people pay for care they can’t afford, I mean die.
Shoot hiv-infected gays with a bazooka, as soon as they attempt to convince a woman to have an abortion.

The Declaration of Independence is a document that sets out the reasons for the revolution, the grievances the colonies had with King George, and some philosophical ideals related to what a nation can and can’t do.

The Constitution is not a sequel to the Declaration. The only repeated stuff in the Constitution is related to rules and regulations such as levying taxes and declaring war and creating commerce.

They are two entirely separate documents with completely separate goals. One is a letter to a non-representative despot, the other is a document containing rules for governing the new country. They have no connection to each other.

The Declaration of Independence was a political and propaganda document. The Constitution was a legal document. They were written 20 years apart with completely different objectives. They had nothing to do with each other.

More importantly, the Declaration has nothing to do with the Constitution.

Me in response:

Wildly untrue.

Katherine Lorranie:

The Declaration of Independence is a document that sets out the reasons for the revolution, the grievances the colonies had with King George, and some philosophical ideals related to what a nation can and can’t do.

Those stated ideals are critical premises to understanding the Constitution. Especially given the non-statutory structure of the Constitution which demands subjective interpretations. The Constitution architects a government while also establishing certain principles which are not strictly defined. Principles like due process, government’s obligation to protect rights (straight from the DofI), and prohibitions like that against, “cruel and unusual punishment”.

These DofI ideals are not dead, forgotten, or more importantly moot after the Constitution was ratified. Those stated ideals are instead critically important premises in providing a framework to judge how the Constitution is interpreted and amended.

There are of course arguments we can ignore the DofI, like those Antonin Scalia makes. But many, including some of the U.S.’s greatest Americans, will not make a case for many constitutional issues without using the DofI as their standard. Garry Wills describes Lincoln’s influence even to this day when it comes to relationship between the two documents:

“. . . the Declaration means what Lincoln told us it means, as a way of correcting the Constitution itself without overthrowing it.” [Cite: Lincoln at Gettysburg, pg. 147.]

For example, a key argument in support of equality remains the DofI’s assertion regarding both equality and individual rights. It is the standard many Americans use to weigh the legitimacy of action which is claimed to be just, including arguments about the constitutionality of various issues. Avoiding the equality assertion in the DofI is how some justices argue they can rightly dilute or even avoid the Equal Protection Clause of the 14th Amendment. They do this by asserting the plaintiff whose rights are infringed upon has the obligation to prove the government doesn’t have the authority, or a proper interest, to infringe upon their rights.

This is how Scalia avoids applying the Equal Protection Clause to protect the rights of gays. This avoidance of the DofI is what we observe from the court where they now use “footnote 4″ to apply various standards of scrutiny which often puts the onus on individual citizen plaintiffs to prove the unconstitutionality of the government infringing on their rights. That rather than instead obligating the government to prove to the court it has constitutionally derived powers to infringe upon a person’s right, or no obligation to protect a right being infringed upon.

Katherine Lorranie:

The Constitution is not a sequel to the Declaration.

Who claimed otherwise?

Katherine Lorranie:

The only repeated stuff in the Constitution is related to rules and regulations such as levying taxes and declaring war and creating commerce.

Well no. One can’t understand the, ‘privileges and immunities’ clause of the Constitution if they don’t consider the DofI as critical context. And why James Madison’s argument was credible that no Bill of Rights was required, or why he insured a 9th Amendment upon conceding the adding of certain rights to the Constitution. One also needs to understand certain assertions in the DofI to also understand the 1st, 4th, and 5th Amendments. As well as both the ‘privileges or immunities’ clause along with the Equal Protection Clause of the 14th Amendment.

Your assertion here also avoids the central context on how many constitutional scholars, and others, like President Lincoln leverage(d) the DofI as a key premise in making arguments about constitutional matters. In fact President Lincoln’s primary premise for arguing against the constitutionality of slavery was the just governance standards of the DofI. But even deeper than that is that the DofI remains a key standard to test the legitimacy of the Constitution both then and now. To Lincoln the DofI was:

. . . a set of goals to be realized over time, and so an explanation less of the Colonists’ decision to separate from Britain than of their victory in the War for Independence. [Pauline Maier, American Scripture: Making the Declaration of Independence. Pg. 207, First Vintage Books Edition, 1998].

“We the People”, that is extant Americans, inherited the Constitution; we did not draft it, advocate for it, and get it ratified. So how can we claim to be self-governed where the government exercises its authority over us? A key premise to test the legitimacy of the current government is not only if government acts constitutionally as interpreted b by the courts, but if its behavior adheres to the ‘just governance’ standard put forth by the DofI. It is this legitimacy test which justifies the DOJ or White House to argue against laws in the Supreme Court rather than blindly advocate for them if they fail such a test. This is not a new concept, but one promulgated by Thomas Jefferson later in life (with some self-interested bias of course), but again, most vividly articulated first by Abraham Lincoln and then most famously in the 20th century by Martin Luther King Jr.

Katherine Lorranie:

They are two entirely separate documents with completely separate goals. One is a letter to a non-representative despot, the other is a document containing rules for governing the new country. They have no connection to each other.

Well again, no one is claiming they are, “two entirely separate documents”. It’s also false they have separate goals; that again is wildly untrue. The DofI asserts a standard which the King and Parliament failed and that we still fail to meet today. The Constitution creates the framework and laws in an attempt to achieve the standard set in the DofI; to, “establish a more perfect union.” To test the performance of the Constitution, a valid and popular frame of reference is the DofI; Lincoln insured that for a century with MLK Jr. effectively carrying on his work. I’m not sure how one can sufficiently appreciate the Preamble of the Constitution or the aforementioned Amendments and clauses if they don’t understand their roots in the DofI (or the English Bill of Rights for that matter and its transference to a contractual obligation between a government and its people as Britain moved away from the divine right of kings).

An excellent introduction to the DofI is the aforementioned American Scripture. Some of the early chapters of Randy Barnett’s Restoring the Lost Constitution introduces how the structure of the Constitution, which mostly avoids statutory language, requires external context to understand the philosophical underpinning of the Constitution and its claimed legitimacy. Where a key contextual document to perform such a test is the DofI. And not just the first ratified draft of the Constitution, but also the 14th Amendment along with the Civil Rights Acts and similar legislative acts.

Here’s Lincoln in his last debate with Steven Douglas:

I think the authors of that notable instrument [DofI] intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral development, or social capacity. They defined with tolerable distinctness in what they did consider all men created equal — equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this they meant. They did not mean to assert the obvious untruth that all were then actually enjoying that equality, or yet that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society which should be familiar to all, constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, of all colors, everywhere. [Cite: http://www.bartleby.com/251/pages/page415.html